From the President: Injustice on Our Streets

Criminal defense lawyers must be at the forefront of the fight to create a program for criminal justice that, at every stage, dispenses justice to our most powerless citizens.

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Don’t take advantage of the poor just because you can; don’t take advantage of those who stand helpless in court.  

— Proverbs 22:22-23

Baton Rouge, Louisiana. Falcon Heights, Minnesota. Dallas, Texas — three blocks from where John F. Kennedy was assassinated. By the time you read this, the list almost certainly will have grown, possibly through cases that receive national attention, and likely through cases that do not. As difficult as it is for average citizens to process these tragedies, it is all the more maddening for those of us who have devoted our professional careers to the criminal justice system. The late Holocaust survivor, Elie Wiesel, said, “The opposite of love is not hate — it’s indifference. And the opposite of life is not death — it is indifference.” No criminal defense lawyer can be indifferent to the seemingly endless parade of deadly encounters between police officers and citizens. We spend our lives working for justice. Yet, each day in the news we are seeing the opposite of justice.

We will deal with the aftermath. We will represent victims of police brutality, we will represent protestors, and, yes, we will represent police officers. We will do so without hesitation, fully committed in our belief that everyone is entitled to the best possible representation. But how do we work together proactively to stop this madness? What can we do as a profession not merely to deal with the aftermath, but, proactively, to play a role in bending the arc of the moral universe back in the direction of justice?

First, as lawyers, we are on the front lines of the struggle for justice and we must lead responsibly. The Hippocratic Oath includes the following: “Neither will I administer a poison to anybody when asked to do so, nor will I suggest such a course.” Like doctors, our first order of business is to do no harm.

Some attorneys, however, have utterly failed to heed that oath. Rudolph Giuliani, who served as the U.S. Attorney for the Southern District of New York, the chief law enforcement officer of the most populated and most diverse judicial district in the country, recently said that the Blacks Lives Matter movement is “inherently racist.” After George Zimmerman was acquitted in the shooting death of Trayvon Martin, activist Alicia Garza wrote: “We don’t deserve to be killed with impunity. We need to love ourselves and fight for a world where black lives matter.” What, exactly, Mr. Giuliani, is inherently racist about wanting to live in a world where black lives matter?

Mr. Giuliani blamed the Black Lives Matter movement for the death of the police officers in Dallas, claiming that Black Lives Matter puts a “target” on the officers’ backs. This absurd and poisonous hate speech has no place in public discourse at any time, much less coming from a lawyer at a time when the nation is dangerously divided. We, as criminal defense lawyers, regardless of our political beliefs, must resist the temptation that this former prosecutor could not. Not only should we refrain from engaging in any such rhetoric, but also we must call out such false, libelous, and reckless claims when we hear them from others.

Bad policing has corrosive, racist, and deadly consequences. It is not anti-police to protest bad policing. We are for good policing. Indeed, the Dallas police department has been held up as an example of good, or at least improved, policing. Efforts in Dallas to train police officers to defuse situations, rather than escalate them, have dramatically reduced violent police-citizen encounters in that city. That is furthering the cause of justice. And it can be replicated elsewhere.

Second, we must be advocates for reform of bad policing. On a daily basis, we are in courthouses all over the country confronting bad policing, bad lawyering, and bad judging. As an Association, we work to achieve policy reforms to prevent bad lawyering and bad judging. We must be equally vigilant in the policy arena to address bad policing, before it spreads injustice in our courtrooms and, far too often, death on our streets.

I am proud to have served for the past several months on NACDL’s Body Camera Task Force. Body cameras are no panacea for bad policing. But NACDL will be part of the discussion of when and how body cameras should be used to add to the overall body of evidence of what occurred in a police-citizen encounter, increasing the likelihood that the truth about that encounter can be learned and justice can be served. This task force, which has heard from witnesses representing the communities we serve, police officers, public defenders, and other stakeholders, can be a model for the thoughtful way NACDL can address other policing issues. Policing is a vital part of the criminal justice equation. NACDL must be just as engaged in ensuring the proper functioning of this part of the criminal justice system as it is with lawyering and judging.

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Third, we must recognize the interconnectedness of justice. We cannot short-change one part of the criminal justice system and expect the rest of it to work. A police officer shoots and kills a black citizen in Baton Rouge. This shooting does not occur in a vacuum. It occurs in a city where the police department does not reflect the racial composition of the community. It occurs in a state where the criminal justice system, at least as it exists for the poor, is in shambles.

Nelson Mendala said, “There is nothing I fear more than waking up without a program that will help me bring a little happiness to those with no resources, those who are poor, illiterate, and ridden with terminal disease.” It is not a coincidence the tragedies we are witnessing are occurring at a time when, in so many respects, we are waking up without a program to address the needs of the poor, the uneducated, the unemployed, the homeless, and the mentally ill.

We, as criminal defense lawyers, must be at the forefront of the fight to create a program for criminal justice that, at every stage, dispenses justice to our most powerless citizens. NACDL must rededicate itself to providing support to lawyers who serve clients who are indigent. Because public defenders carry the burden of so much of the work representing indigent people in our country, NACDL has begun a multi-year effort to engage public defenders, to make NACDL a home for public defenders, to encourage public defenders to be active members of our Association and leaders of it, and to work together with public defenders across the country — through policy reform efforts, strike force support, and, where necessary, litigation — to ensure the accomplishment of the vital mission of achieving criminal justice for those without resources.

On behalf of our individual clients and on behalf of our country, we cannot tolerate injustice on our streets or in our courtrooms. It is only when the entirety of the criminal justice system actually dispenses justice that we will lessen the number of times we will wake up to a Baton Rouge, Falcon Heights, or Dallas, and to our own helplessness as we watch the cycle of upheaval that inevitably follows such tragedies.

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About the Author

Barry Pollack is Chair of the White Collar & Internal Investigations Practice at Miller & Chevalier. As a former certified public accountant, a substantial focus of his practice is representing defendants in complex financial matters. He is a Fellow of the American College of Trial Lawyers and of the American Board of Criminal Lawyers.

Barry J. Pollack
Miller & Chevalier
900 16th Street NW
Washington, DC 20006
Fax 202-626-5801

Cover Photo: Barry J. Pollack - NACDL's 58th President
Taken by John Marshall Memorial Park, Washington, D.C., by Volodymyr Bukalo of Dupont Photographers, ©NACDL 2016.

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